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TMI Blog2024 (7) TMI 1440X X X X Extracts X X X X X X X X Extracts X X X X ..... for Respondent No.1) By Sri G S Nagharish, Advocate for R1 & R3 Sri G.R. Srinivas, Advocate for R2) By Sri Chandrashekara K, Advocate. JUDGMENT PER SHIVASHANKAR AMARANNAVAR J, 1. The Income Tax Department has filed these appeals under Section 377 of Cr.P.C. against the sentence on the ground of its inadequacy. The details of these appeals are as under: Sl.No Crl Appeal (H.C) Trial Court name C.C.NO. with judgment Date Offence Sentence 1 1339/2020 Spl. Court for economic offences at Bengaluru 148/2018 dtd. 19/10/2019 Sec 276 B R/w 278B of I.T Act. 1961 with Rule 30 25,000/- 2 925/2021 Same 147/2018 Dtd. 19/10/2019 Same 25,000/- 3 950/2021 Same 149/2018 dtd. 19/10/2019 Sec 276B 25,000/- 4 954/2021 Same 101/2018 dtd. 16/11/2019 Sec 276 B R/w 278B of I.T Act. 1961 with Rule 30 20,000/- 5 1207/2021 Same 74/2019 dtd. 19/12/2020 Sec 276B 20,000/- 6 1222/2021 Same 68/2018 dtd. 23/10/2020 Sec 276B 20,000/- 7 1223/2021 Same 77/2018 dtd. 15/02/2020 Sec 276B 1,00,000/- 8 1224/2021 Same 86/2018 dtd. 28/10/2020 Sec 276B 25,000/- 9 1229/2021 Same 84/2018 dtd. 28/10/2020 Sec 276B 25,000/- 10 1319/2021 Same 81/2019 Dtd. 19/03/2020 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act, 1969. 3. The order pursuant to which the above notification is issued reads as under: "PROCEEDINGS OF THE GOVERNMENT OF KARNATAKA "Subject : Special Court - Constitution of - for trial of Economic Offences - at Bangalore from 13.09.1982 - Orders reg. --- ORDER NO. LAW 106 LCE 79/DATED 01.09.1982 Read: 1. Letter No. 2-1-1979 Judl. dated 27-4-1979 from the Government of India, Ministry of Home Affairs, New Delhi. 2. Correspondence ending with letter C.No. VIII/17/21/79 Legal dated 18-10-79 from the collector of Central Excise, Central Revenues Building, Bangalore. 3. Letter No.23-6-79 dated 14-4-81 and Wireless Messages under No.23/5/82 Jus dated 3-5-82, 27-4-82, 26-5-82-and 16-6-82 from the Government of India, Ministry of Law, Justice and Company Affairs, New Delhi. 4. Correspondence ending with letter No.GOB.393/1979 dated 21-8-1982 from the Registrar, High Court of Karnataka, Bangalore. PREAMBLE: The Government of India, Ministry of Home Affairs, New Delhi, in their letter No.2-1-79 Judl. Dated 27-4-79 have suggested to this Government that additional courts may be established exclusively for dealing with economic offences, in accordance with the 47th report ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection) Act, 1963 11. The Companies Act, 1956 12. Monopolies and Restrictive Trade Practices Act, 1969. 4. Another notification dated 04.02.1985 bearing No. LAW 139 LCE 79 has been issued by the Government of Karnataka which reads thus: NOTIFICATION In exercise of the powers conferred by the Provision to Sub-Section (1) of Section 11 read with clause (1) of Section 2, and Section 13 of the Code of Criminal Procedure, 1973 (Act. No. 2 of 1974) the Government of Karnataka, in consultation with the High Court of Karnataka, hereby makes the following amendment to the Notification No. LAW 196 LCE 79 dated 01.09.1982, namely : In the schedule to the said Notification after serial number 12, the following shall be inserted: "13. The Railway Property (Unlawful Possession) Act, 1966 (Act No. 20 of 1966) 14. The Employees Provident Fund and Miscellaneous Provisions Act, 1952 (Act No.19 of 1952) 5. The Special Court of Judicial Magistrate First Class which has been established by the above notification dated 01.09.1982 for trial of offences under the Central Acts is specified in the schedule as having jurisdiction within the local areas of revenue district of Bengaluru includin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... udicial Magistrate First Class. Malavalli (xii) Principal Civil Judge and Judicial Magistrate First Class, Maddur (xiii) I Additional Civil Judge and Judicial Magistrate First Class, Maddur (xiv) II Additional Civil Judge and Judicial Magistrate First Class, Maddur (xv) Civil Judge and Judicial Magistrate First Class, Pandavapura Mandya 8 (i) III Additional Senior Civil Judge and Chief Judicial Magistrate, Mysuru (ii) Senior Civil Judge and Judicial Magistrate First Class, Krishnarajanagara (iii) III Additional Civil Judge and Judicial Magistrate First Class, Mysuru (iv) V Additional Civil Judge and Judicial Magistrate First Class, Mysuru Mysuru 9 i) Principal Civil Judge and Judicial Magistrate First Class Kunigal (ii) Principal Civil Judge and Judicial Magistrate First Class, Gubbi (iii) Senior Civil Judge and Judicial Magistrate First Class, Tiptur (iv) IV Additional Civil Judge and Judicial Magistrate First Class, Tumakuru Tumakuru 10 Additional Civil Judge and Judicial Magistrate First Class, Udupi Udupi 11 Civil Judge and Judicial Magistrate First Class, Ankola Uttara Kannada Karwar 7. The offence for which the respondents - accused have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Code of Criminal Procedure, 1973 as applicable in the case of trial of summons case, shall apply accordingly. Application of Code of Criminal Procedure, 1973 to proceedings before Special Court. 280D. (1) Save as otherwise provided in this Act, the provisions of the Code of Criminal Procedure, 1973 (including the provisions as to bails or bonds), shall apply to the proceedings before a Special Court and the person conducting the prosecution before the Special Court, shall be deemed to be a Public Prosecutor: Provided that the Central Government may also appoint for any case or class or group of cases a Special Public Prosecutor. (2) A person shall not be qualified to be appointed as a Public Prosecutor or a Special Public Prosecutor under this section unless he has been in practice as an advocate for not less than seven years, requiring special knowledge of law. (3) Every person appointed as a Public Prosecutor or a Special Public Prosecutor under this section shall be deemed to be a Public Prosecutor within the meaning of clause (u) of section 2 of the Code of Criminal Procedure, 1973 and the provisions of that Code shall have effect accordingly." 8. Said provisio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eal to the High Court against the sentence on the ground of its inadequacy. (2) If such conviction is in a case in which the offence has been investigated by the Delhi Special Police Establishment, constituted under the Delhi Special Police Establishment Act, 1946 (25 of 1946), or by any other agency empowered to make investigation into an offence under any Central Act other than this Code, the Central Government may also direct the Public Prosecutor to present an appeal to the High Court against the sentence on the ground of its inadequacy. (3) When an appeal has been filed against the sentence on the ground of its inadequacy, the High Court shall not enhance the sentence except after giving to the accused a reasonable opportunity of showing cause against such enhancement and while showing cause, the accused may plead for his acquittal or for the reduction of the sentence." 11. Prior to amendment Act No. 25/2005 the High Court only had jurisdiction to entertain appeal against the sentence on the ground of its inadequacy. Subsequent to amendment of sub-section (1) and sub-section (2) of Section 377 of Cr.P.C., appeal against the sentence on the ground of inadequacy is provided ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me Tax Officer Vs. M/s. Skyline Constructions Ltd. And another, rendered in Crl.A. No. 1420/2003 dated 30.01.2009. In the said decision the coordinate Bench has considered similar point urged by the learned counsel for appellant and observed thus: "8. Though at the first look it could be said that the contention of the learned counsel may be right as the decision in question is on a trial conducted by the magistrate, but on a close examination of records, it is noticed that the impugned decision is rendered, no doubt, by a magistrate presiding over the Special Court of Economic Offences. It admits of no doubt that in any case of conviction by any court other than a High Court, the State Government may direct an appeal to be filed before the High Court on the ground of inadequacy of sentence. The legislative intent in incorporating it makes the position different. Sub-section (2) provides an appeal to the High Court if the sentence is passed by any other court. This undoubtedly excludes the magistrate as covered under clause (a). 9. The question would be, which are these other courts referred to in clause (b). The Code of Criminal Procedure identifies three categories of courts-co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Cr.P.C., as it stood prior to amendment by Amendment Act No. 25/2005 was applicable. The Court ought not to have considered the aspect of maintainability by taking into consideration the amended provisions of clause (a) of sub-section (1) of Section 377 of Cr.P.C. as amended by Act No. 25/2005. Apart from that, the conclusion that the words in clause (b) 'any other Court' brings within its sweep Special Courts even though they may be presided over by the officer of the rank of a Magistrate, in my view, is not proper for the following reasons: Prior to establishment of Special Court of Judicial Magistrate First Class the trial of offences under the 12 + 2 enactments were within the jurisdiction of Judicial Magistrate First Class. In the preamble of the order No. LAW 106 ICE 79 dated 01.09.1982 it is stated that the Government of India suggested that additional Courts may be established exclusively for dealing with the economic offence in accordance with 47th report of the Law Commission recommending the establishment of special Courts for effective and speedy prosecution of such offences. Therefore, the Special Court came to be established which is presided over by Judicial Magistr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... judgments are conflicting judgments against the same judgment of conviction passed by the Special Court. In order to avoid such conflicting judgments the appeal against conviction and appeal against inadequacy of the sentence are to be dealt with by the same Court. 21. The Full Bench of this Court in the case of Ammannamma and others Vs. State of Karnataka reported in ILR 2005 KAR 1029 has held that in cases where appeal against conviction is filed and appeal against enhancement is also filed, the Bench considering the same is required to dispose of the same simultaneously and together and not separately i.e. not in any other manner. 22. Learned counsel for appellant argued that in an appeal filed against the sentence on the ground of inadequacy under Section 377 of Cr.P.C. the accused may plead for his acquittal or for reduction of sentence as provided under sub-section (3) of Section 377 of Cr.P.C. The right of appeal is provided to the accused to challenge the judgment of conviction and order on sentence under sub-section (3) of Section 374 of Cr.P.C. So also sub-section (3) of Section 377 of Cr.P.C. provides for the accused to plead for his acquittal or for reduction of sente ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad for his acquittal or for the reduction of the sentence. (4) When an appeal has been filed against a sentence passed under section 64, section 65, section 66, section 67, section 68, section 70 or section 71 of the Bharatiya Nyaya Sanhita, 2023, the appeal shall be disposed of within a period of six months from the date of filing of such appeal. 25. On a reading of Section 418 of BNSS it is in pari materia with Section 377 of Cr.P.C. Even under the BNSS no provision has been introduced for filing appeal before the High Court if the sentence is passed by the Magistrate. Sub-Section (3) of Section 415 of BNSS provides for filing appeal to the Court of Sessions against judgment of conviction on a trial held by the Magistrate. The reasons noted supra will also apply to the appeals filed or to be filed under Section 418 of BNSS. 26. Liberty is given to the appellant - Income Tax Department to present the appeal before the jurisdictional Sessions Court within a period of two months from the date of this judgment. It is made clear that period which has been spent before this Court will not come in the way for considering the period of limitation, if the appeal is filed before the ju ..... X X X X Extracts X X X X X X X X Extracts X X X X
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